Citation Nr: 18124084
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 09-38 222
DATE:	August 7, 2018
Entitlement to service connection for prostatism, claimed as bladder dysfunction secondary to service connected lumber spine DJD.  
Entitlement to an initial evaluation in excess of 10 percent for right shoulder degenerative joint disease (DJD) is remanded.
Entitlement to an initial evaluation in excess of 10 percent for cervical spine DJD is remanded.
Entitlement to an initial evaluation in excess of 20 percent for lumbar spine DJD with left leg sciatica prior to June 17, 2013 and in excess of 10 percent for lumbar spine DJD from that date.
Entitlement to an initial compensable evaluation for lichen simplex chronicus, right temple, is remanded.
The Veteran served on active duty from January 2003 to January 2005, October 1998 to April 1999 and September 2007 to October 2008.
These matters are before the Board of Veterans’ Appeals (Board) on appeal from May 2009 (initial ratings for lumbar and cervical spine, right shoulder and right temple lichen simplex chronicus) and September 2012 (prostatism, claimed as problem with bladder control) rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA).
An interim April 2010 rating decision granted an increased 20 percent rating for lumbar spine DJD with left leg sciatica from October 17, 2008, the date following the Veteran’s separation from service.  As the increased rating does not represent the maximum rating available for the lumbar spine, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  In addition, an interim June 2014 rating decision recharacterized the low back disability as lumbar spine DJD and assigned a staged 10 percent rating.  Both stages of the low back disability rating are on appeal before the Board.  
The Veteran had also disagreed with the denial of service connection for disorders of the right hand, left knee, right elbow, right ankle, tinnitus, dizziness and pain in right upper quadrant; an increased rating for right knee chondromalacia patella and the propriety of offset of VA disability compensation based on drill pay for 158 days during fiscal years 2009, 2010 and 2011.  He was provided a statement of the case (SOC) in March 2014 in connection with his medical claims and April 2015 in connection with the matter of offset of disability compensation; however, he did not perfect his appeal as to these matters by filing a substantive appeal.  Thus, these issues are not before the Board at this time.
At his request, the Veteran was scheduled for a Board hearing in June 2018.  The notice of the hearing was not returned as undeliverable and an electronic note in VA’s “Veterans Appeals Control and Locator System” (VACOLS) indicates that he failed (without providing cause) to report to his scheduled hearing.  Accordingly, his hearing request is deemed withdrawn.
Review of the record shows that, since the most recent adjudication of the Veteran’s claims (April 2010 supplemental SOC (SSOC) for lumbar and cervical spine DJD (and June 2014 rating decision for lumbar spine DJD), May 2014 SOC for prostatism, claimed as problem with bladder control, and July 2015 SSOC for right shoulder DJD and right temple lichen simplex chronicus), updated VA treatment records and July 2018 VA urinary tract, shoulder and arm, male reproductive system, back and peripheral nerve conditions examination reports were added to the Veteran’s claims file.  However, the Veteran has not been furnished a supplemental statement of the case (SSOC) that addresses the newly added medical evidence.  This evidence is pertinent to the issues on appeal, and a waiver of initial review has not been received.  Therefore, a remand is required to allow the AOJ to review the new evidence in relation to the Veteran’s claims.  38 C.F.R. § 20.1304.  See also 38 C.F.R. § 19.37(b).  Additionally, the VA treatment records are VA-generated evidence not submitted by the Veteran or his representative and the automatic waiver provision of 38 U.S.C. § 7105(e) does not apply.
Notably, the VA treatment records include a February 2018 dermatology treatment report which shows cryotherapy to the temple and notes the Veteran had “many similar spots on the superior chest that are pruritic due to rubbing on clothing” which had not been previously treated.  As the Veteran’s most recent VA dermatology examination was in September 2013 and subsequent medical evidence suggests a worsening of his symptoms, on remand, he should be afforded a new VA dermatology examination.  
The matters are REMANDED for the following action:
1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA treatment records.
2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the nature, extent and severity of his service-connected right temple lichen simplex chronicus.  The claims folder and copies of all pertinent records should be made available to the examiner.  All indicated tests should be performed.
3. Thereafter, review the expanded record since the most recent adjudication of the Veteran’s claims and readjudicate the issues on appeal.  If any benefit sought on appeal remains denied provide the Veteran and his representative with a SSOC and afford them a reasonable opportunity to respond.  Then return the case to the Board for further appellate review, if otherwise in order.

Veterans Law Judge
Board of Veterans’ Appeals

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